When Congress Tried To Rule

When in the spring of 1868 the Senate of the United States declared Andrew Johnson “not guilty” of the high crimes and misdemeanors charged against him by the House, Congressman Thaddeus Stevens predicted that never again would a serious effort be made to impeach an American President. What the sharp-spoken warrior from Pennsylvania was saying, of course, was that the failure to remove Johnson had set a precedent that future generations would hesitate to challenge.

At seventy-six Stevens, emaciated and sick, presenting to the world the appearance ol a white old rock drying in the sun, was almost at the end of his earthly course. His comment on the outcome of Johnson’s trial, of which he himself was the chief architect, was the last remark of more than passing interest he would ever make. It was also one of his most tantalizing, for it fastened attention on a question that still hovers over the only attempt to date to drum a Chief Executive out of office.

The question is why—why did the leaders of the Republican majority in Congress go to the enormous bother of trying to depose a President who had long since, and irretrievably, lost all ability to interfere in any substantial way with their legislative programs?

On the surface, the purpose of Johnson’s enemies was to call a halt to his persistent opposition to their plans for reconstructing the eleven formerly Confederate states, all of which, except Tennessee, were still out of the Union at the time of the impeachment trial. For many of the lesser lights among the so-called Radicals of the congressional majority this was, no doubt, the only motive. But to say that it was the only —or even the main and operative—motive in the minds of Thad Stevens and the other effective leaders of the impeachment movement is to suggest that these brainy and experienced politicians were incapable of grasping realities that were right under their noses.

The members of the congressional majority did not have to remove the President in order to have their way about Reconstruction. They had had their way ever since the 1866 elections, which had given them in both houses of Congress enough strength to override any vetoes Johnson chose to hand down. They had scuttled his Reconstruction program and substituted their own. One wav or another thev had made it difficult for him to exercise many of his constitutional powers, hamstringing him to the point where even if they failed to impeach him, he would still be unable to wrest control of the South from their hands.

There was the further fact that Johnson’s term of office was almost over, and there was no reason to believe that he could be elected to another, even if some of the leaders of his own Democratic party were quixotic enough, in 1868, to suggest the nomination o! a man so discredited in the eyes of the voters. His presence in the White House was annoying, and sheer hatred of the man was playing a role in the How of events. The Republican leaders had only to bide their time in patience for a lew months and Andrew Johnson would be out of their way.

But they didn’t wait, and for this they had compelling reasons—largely unspoken, to be sure, and perhaps not even fully articulated in their own minds. Other men outside their circle and unfriendly to them guessed what they were up to. One was Gideon Welles, Johnson’s Secretary of the Navy and Lincoln’s before him. Behind Welles’ benign eyes and his ecclesiastical face in its whiskery nest lay a trenchant and suspicious mind, a mind sometimes wrong in its judgments but sometimes devastatingly accurate. “It is evident,” he was writing in his famous diary on the eve of the trial, “that the Radicals in Congress are in a conspiracy to overthrow not only the President but the government.”

“Deacon” Welles, as he was now and then called, was right. The determined men behind the impeachment had bigger fish to fry than the Reconstruction of the South. They were looking beyond immediate issues to the reconstruction of the American form of government.

A few of them overrated Johnson, assuming that he still possessed the capacity to impede their Reconstruction plans. But it is difficult to believe that Stevens and his more knowing associates entertained any such misapprehensions. Far from seeing a danger in Johnson’s strength, these men saw an opportunity in his weakness. Here was a President cut off from organized political support and violently opposed by at least sixty per cent of the press, an Executive who probably could be removed. The proximity of the end of his term, instead of being a deterrent, was a spur, since it might be a long while before another President so defenseless and vulnerable came along. Of this fact Stevens, facing death, was poignantly aware.

The anvil was hot; the time to strike was now. If this Congress could oust a President because he disagreed with them, what was to prevent future Congresses from ousting other Presidents for the same reason? The result was bound to be a gradual erosion of the federal system and its replacement by something akin to the parliamentary system of Great Britain, a system in which Congress would rule supreme—with the executive and, in time, the judiciary as satellites.

I submit that therein lies the major significance of the impeachment trial. At Appomattox, in the spring of 1865, the Civil War bled to its close. In the red and gold well of the Senate chamber, in the spring of 1868, the war’s aftermath reached its climax: all the rest of Reconstruction was to be an ebbing away from this moment, a gradual return to normal under the same government erected by the founding fathers.

That the attempt to remove Johnson was a strictly political maneuver is a fact with which few historians, if any, disagree any longer. The main charge was that he had defied the Tenure of Office Act of 1867, which forbade the President, under certain circumstances, to remove a Cabinet member without the consent of the Senate. When Johnson dismissed Lincoln’s enigmatic Secretary of War, Edwin McMasters Stanton, whom he had kept on along with the rest of Lincoln’s Cabinet, the Senate refused its consent. Johnson persisted because of Stanton’s failure to co-operate with the Administration and his alliance with its opponents, and the Radicals in the lower house, who for more than a year had been seeking some excuse for impeaching the President, brought him to trial before the Senate on March 30, 1868.

The Tenure of Office Act was unconstitutional, as the Supreme Court would, many years later, declare. Even so, many of the best legal minds of the day went along with Johnson’s claim that his dismissal of Stanton was not clearly within its meaning. For the act contained an ambiguous clause specifying in effect that Senate consent to the removal of a Cabinet officer was required only if he were dismissed during the term—plus one month—of the President who had appointed him. And Johnson had not appointed Stanton.

As for the remaining accusations in the wordy Articles of Impeachment, they consisted of little more than the allegation that Johnson had exercised his constitutional powers as Commander in Chief although Congress had passed a law forbidding him to do so, along with the assertion that, at divers times and places, the President had delivered speeches of a distasteful nature “in a loud voice.” So niggling were all of these charges that midway in the trial Benjamin F. Butler of Massachusetts, chief prosecutor for the House impeachment managers and one of the President’s most implacable foes, confessed that as a lawyer he would give anything to be on the other side of the case. But Charles Sumner, the ponderous Massachusetts abolitionist, dismissed such qualms as of no consequence and blatantly advised his fellow senators to ignore mere matters of fact and law in passing judgment. Let each senator, Sumner urged, pronounce the words “Guilty” or “Not Guilty” in accordance with his political convictions.

Clearly, then, the trial was political. Abundant evidence that it was also revolutionary is to be found in the events out of which it grew.

When Lincoln died, Congress was in recess, and this gave his successor for several months a free hand to initiate Reconstruction. In spirit Johnson’s plan was in line with ideas that Lincoln had endorsed. He recognized the loyal governments set up during the war in four of the formerly Confederate states. In each of the other seven he appointed a provisional governor empowered to establish a permanent civil organization. He let it be understood that, in the eyes of the Executive, each state could be eligible for readmission to the Union as soon as it completed this process, provided that simultaneously it abolished slavery within its borders (preferably by ratifying the Thirteenth Amendment), repudiated its Rebel war debt, and voided its ordinance of secession. By the time the first session of the Thirty-ninth Congress convened on December 4, 1865, nine of the eleven Southern states—all but Texas and Florida—had fulfilled the President’s requirements, with one or two minor deviations, and had named senators and representatives to the national legislature.

Had Congress accepted these representatives from the South, restoration—if not Reconstruction, strictly speaking—would have been practically completed at this point. Congress did not, and of the elements behind its refusal, two were large with future mischief.

One was the growing influence of the “iron-back,” or Radical, wing of the Republican party, gravitating in the House around Stevens and in the Senate around Sumner and Benjamin F. Wade of Ohio. The commonly held objective that enabled them to present a solid front was their determination to preserve a Republican hegemony in Congress. Obviously the President’s Reconstruction program was a threat to this, for immediate seating of the Southern representatives would reduce the nominal Republican majority in the House from ninety-eight to about forty, and in the Senate from twenty-eight to about six. The Radicals had other aims, but their devotion to party domination was the feature that most clearly distinguished their thinking from that of the more statesmanlike Republican moderates.

The other important element was the fact that the Thirty-ninth, like all Congresses convening immediately after a war, was suffering the pangs of power deficiency and injured dignity. For four years the legislative branch had deferred to the executive. The Thirty-ninth Congress was determined to reassert itself.

Notwithstanding these divisive influences, the lineup in the Congress was not such as to make a break with the Executive inevitable. The Radicals controlled the House, but in the Senate the balance of power lay with perhaps a dozen Republican moderates of the caliber of William Pitt Fessenden of Maine and Lyman Trumbull of Illinois. Where the South was concerned the moderates harbored no vindictive or nakedly political aims. Their one demand was that as a price for readmission to the Union the seceded states give concrete evidence of their willingness to extend the blessings of the Bill of Rights to some four million newly freed Negroes.

Had Johnson seen fit to make concessions in this direction, thus inviting the support of the moderates, he might have triumphed, but he would not; he believed that the extension of civil and political rights to the Negroes was a state matter and that the federal government should refrain from interfering—at least until such time as the South was once more fully represented in Congress. Even without making any concessions he might have salvaged a part of his program had the Radicals not been led by Thad Stevens, a political strategist of unique abilities. Johnson made no concessions and Stevens made many, playing his cards so ably that by the end of 1866 the President was locked in deadly combat not merely with the Radicals but with practically the whole congressional majority.

From this point on, the real issue ceased to be who was to control Reconstruction, the Congress or the Executive. The issue had become who was to control the government. In December of 1865 the mood of Congress was merely aggressive. A year later it had become conspiratorial.

Johnson’s enemies tried to justify their course by accusing him of conspiracy. The closing days of 1866 found Congressman George S. Boutwell, the fiery Massachusetts Radical, closeted with Secretary of War Stanton. One can imagine Stanton’s perfumed beard chopping the air as he poured into Boutwell’s receptive ears a tale rife with alarums and horrible imaginings.

The Secretary, according to Boutwell’s Reminiscences , said that the President had issued orders to the Army “of which neither he nor General [of the Army] Grant had any knowledge.” He “apprehended an attempt by the President to reorganize the government by the assembling of a Congress in which members of the seceding states and Democratic members from the North might obtain control through the aid of the Executive.” Boutwell agreed with Stanton that the President’s powers must be limited. Then and there, under Stanton’s dictation, he drafted a measure making it a “misdemeanor for the President to transmit orders to any officer of the army except through the General of the Army.” Added to this were other provisions forbidding the President to remove the General of the Army—or, for that matter, even to assign him to duty outside the capital—without the advice and consent of the Senate.

This flagrant attempt to strip Johnson of his prerogatives as Commander in Chief was attached to the Army Appropriation Bill of 1867. Rather than leave the military without funds, the President signed it, taking care in his return message to note that the rider attacking his powers was unconstitutional.

The conspiratorial mood of Congress was further expressed by the passage of other bills, including the Tenure of Office Act, aimed at clipping the President’s wings. In the House, Stevens was describing the legislature as “the sovereign power of the country” and thundering that “though the President is Commanderin-chief, Congress is his commander, and God willing, he shall obey!”

In the Senate, slender and dignified John Sherman, brother of the Civil War general, while demurring at the Tenure of Office Act, was supporting the rest of the Radical program with a zeal typical of other erstwhile moderates who had seen the light and reformed. “The executive department of a republic like ours,” Senator Sherman would write later, in summation, “should be subordinate to the legislative department. The President should obey and enforce the laws, leaving to the people the duty of correcting any errors committed by their representatives in Congress.”

Nor was Congress content to chip away at the powers of the Executive. It applied its chisel also to the foundations of the Supreme Court. In the first of the four acts embodying the congressional plan of Reconstruction, the judiciary—both federal and local—was made subsidiary to the military in ten Southern states; and by the Habeas Corpus Act of 1867, state courts were forbidden to issue writs of habeas corpus except under certain circumstances. Four other acts were aimed at the Supreme Court, and while not all of them passed, together they constituted a threat to which the Court reacted as desired: in at least two cases involving defiant Southern editors, the justices took refuge in technicalities to avoid decisions that might have overturned the bayonet-carpetbag-scalawag rule that Congress had imposed upon the South.

The mood of the Reconstruction Congress has not gone unobserved on the part of twentieth-century commentators. Roscoe Pound and Charles H. McIIwain have detected in its attitudes similarities to those of the British Rump Parliament, which in 1649 sent Charles I to the scaffold and proclaimed the Commonwealth a “unitary state” with the supreme power vested in the Parliament “of this nation.” The British political scientist Harold J. Laski has found the actions of the post-bellum Senate “inexplicable except upon the assumption that it was determined to make the President no more than its creature.” An even more pointed observation comes from another British student of American government, D. W. Brogan. Noting that if Johnson had been removed, his successor under the Constitution would have been Ben Wade, the pro-Radical president pro tern of the Senate, Brogan poses the question. “Had the impeachment succeeded,” he writes, “had Congress tasted blood by putting one of its own … into the White House, who can say what would have happened to the presidential office?”

It is now pretty widely agreed that, as a matter of fact, Congress had no such chance. When the trial opened on March 30, 1868, many senators—and the people of the North in general—sincerely believed that Johnson merited removal on constitutional grounds. But in the course of almost two months of testimony-taking and a hundred hours of fervid argumentation, the pendulum swung in the other direction.

The fact that Johnson was acquitted by only one vote imparted breathless drama to the closing hours of the trial on May 26, but it cannot be taken as a measure of prevailing sentiment at the time. Three months later, in a letter to an intimate, Johnson was contending that the vote was “not so close as most people think.” The President revealed that “rather than to have seen Ben Wade succeed to the presidential chair,” Senator Edwin D. Morgan of New York, who voted “Guilty,” would have changed his vote if on the two final roll calls the President could have been saved from conviction by his doing so. Two other Republican senators, William Sprague of Rhode Island and Waitman Thomas Willey of West Virginia, bent to the party lash and also voted “Guilty,” but both let it be understood prior to the roll calls that they too would change their votes if their voices were needed.

Apparently all of the seven Republicans who broke with their party to save the day for the President were aware of the impact of their decision on the structure of government. Edmund G. Ross of Kansas, who cast the deciding vote, believed that to have convicted Johnson “upon insufficient proofs and from partisan considerations … would practically have revolutionized our splendid political fabric into a partisan congressional autocracy.” During the summer of 1868 Fessenden, perhaps the clearest thinker among those Republicans who had supported Johnson, was writing that to remove a President of the United States for merely political reasons “would be to shake the faith of the friends of constitutional liberty in the permanency of our free institutions.…” Within weeks after the conclusion of the trial, a decided reaction was noticeable on the part of the public—an inchoate but growing realization that in the acquittal of Johnson the country had escaped dangers far greater than any that its willful, even if right-minded, President could conceivably generate.

The American of today, living in an age quite different from that of 1868, can be excused for wondering whether the acquittal was a danger avoided, as the people of that time believed; or whether, on the contrary, it was an opportunity missed. Would the United States be better able to cope with its present problems if Johnson had been convicted and the central government shifted from a federal to a parliamentary base?

A considerable literature has addressed itself to this question. Many critics of a federalist government of separated powers, of checks and balances, point out that it is also a government of delays and deadlocks. Thoughtful men—Laski among them—have foreseen the day when these characteristics may prove fatal to the American government when it must meet and solve the swiftly arising crises of our own era. Another objection frequently voiced is that the federal system tends to block needed social reforms and in effect thwart the will of the people.

While such criticisms have been coming thicker and faster in recent years, there is nothing new about them. Doubts concerning the workability of the American form of government were in the air while the government itself was still an embryo. In the course of the federal convention during the summer of 1787 Roger Sherman of Connecticut advocated a constitution that would make the legislature “the depository of the supreme will of the society.” And at that same memorable meeting in Philadelphia Alexander Hamilton declared that “the British government was the best in the world: and that he doubted much whether any thing short of it would do in America.”

Since the days when the thirteen colonies, each so jealous of its sovereignty, got together to fight the lobsterbacks, the American people have exhibited a tendency—a genius—to maintain widely divergent viewpoints in normal times, but to unite and agree in times of stress. One reason the federal system has survived is that it has demonstrated this same tendency. Most of the time the three co-equal divisions of the general government tend to compete. In crises they tend to co-operate. And not only during a war. A singular instance of co-operation took place in the opening days of the first administration of Franklin D. Roosevelt, when the harmonious efforts of Executive and legislature to arrest the ravages of depression brought the term “rubber-stamp Congress” into the headlines. On the other hand, when in 1937 Roosevelt attempted to bend the judiciary to the will of the executive by “packing” the Supreme Court, Congress rebelled. This frequently proved flexibility—this capacity of both people and government to shift from competition to co-operation and back again as circumstances warrant—suggests that the federal system will be found equal to the very real dangers of the present world situation.

In the Congress of 1868, one of the charges against Andrew Johnson—a charge subsequently softened by historians—was that his actions were directed by a “boundless egotism.” That they were not is indicated by the fact that never for one moment did he look upon the impeachment proceedings solely as an attack on him personally. As he made clear in numerous statements, he realized that he was not standing alone at the bar of the United States Senate. Standing beside him, faint shades in the sparkle of the chandeliers, were Washington and Madison, Franklin and Randolph, and all of the other devoutly remembered architects of our federal system of government.